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How to prepare an Application for a Certificate of Appointment of Estate Trustee with a Will?

When someone dies the Executors/Trustees of the deceased’s estate must make application for a certificate of appointment (the “Certificate”) of estate trustee. This must be done prior to distributing any of the assets of the estate (although there are certain exceptions which we discuss in a previous blog post “Effective Estate Planning: Dual Wills”).

This blog post is intended for those estate Executors/Trustees who are making applications for someone who has left a will and the Executors/Estate Trustee named in the will is able to act.

Before starting the application process you need to gather certain information, including:
. The original will;
. Codicil (amendment to will), if any;
. List of all of the deceased’s assets with respective values;
. Certain forms (the “Forms”) under the Rules of Civil Procedure – Forms 74.4, 74.6, 74.7, 74.8 and 74.13;

Names and addresses of the beneficiaries under the Will – these are not always spelled out in the Will; and determining who will be the Executors/ trustee(s) – again these are not always spelled out in the Will as the originally named Executors/Trustee in the will may not be able or are unwilling to act.

Prior to sending the application to the court you must serve the beneficiaries with a Notice of Application (Form 74.7) and a copy of the Will (or the portion of the Will dealing with that specific beneficiaries item) by regular letter mail to the beneficiaries last known address. An affidavit of service of notice (form 74.6) must also be filed with the court.

Once you’ve gathered the requisite information needed to make the application and have served the beneficiaries you must complete the Forms and submit them to the court with a cheque made out to the Ministry of Finance for the estate administrative tax (probate fees – click here for the calculator). The application should be filed in the jurisdiction where the deceased’s property is located. If the deceased’s property is located in multiple jurisdictions it can be made in any of the jurisdictions where the property is located.

Once you’ve submitted the application to the court it generally takes 8 weeks to receive a response. Often the court will ask you for additional information or to rectify any issues. If the application is not complete or contains information of which the registrar has a doubt, the application will be referred to a judge for a determination. Once all issues have been rectified you can resubmit. At that point, assuming everything is in order it will generally take an additional 10 days to receive the certificate.

Summary

Kutner Law LLP assists many of our clients in making the application to be appointed as Executors/Estate Trustee. The forms can be quite onerous and difficult to understand so having a lawyer who deals with estates matters is always advised. If you have any questions we would be happy to discuss.

We are happy to meet with you at no charge for your initial visit to discuss your estate/estate planning matters.

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Our lawyers and legal clerks deal with a wide variety of matters including Dental and Medical, Corporate, Condominium and home purchases and sales, Commercial Real Estate, Securities, Wills and Estate Planning.

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